HKSAR v. Li Shun To

CACC 223/2024 [2025] HKCA 403

On appeal from [2024] HKCFI 3191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 223 OF 2024

(ON APPEAL FROM HCCC NO 98 OF 2024)

_______________

_______________

________________

J U D G M E N T

________________

1.On 27 September 2024, following his plea of guilty to a single count of trafficking in dangerous drugs, namely 11.79 grammes of a crystalline solid containing 11.72 grammes of methamphetamine hydrochloride (commonly known as Ice) and 0.01 gramme of a solid containing cocaine, Deputy High Court Judge Eric Kwok, SC (the judge) sentenced the applicant to 6 years’ imprisonment.

2.On 18 October 2024, the applicant filed a notice of application for leave to appeal against his sentence.  On 23 December 2024, the applicant filed perfected grounds of appeal signed by Mr Duncan Percy, on which he advanced three grounds.  Ground 1 complains that the judge adopted an individual approach rather than a combined approach when determining the starting point of 7 years and 6 months’ imprisonment.  Ground 2 avers that the judge was wrong to enhance the starting point before awarding the discount of one third for a timely guilty plea.  Ground 3 complains that the resultant sentence of 6 years’ imprisonment was either wrong in principle or manifestly excessive.

3.The facts outlined to the judge and admitted on behalf of the applicant show that on 22 February 2023 at around 4:30 am, police had set up a roadblock outside 16 Dundas Street, Tau Ma Tei.  At about 5:00 am, the police stopped a taxi at the roadblock.  The applicant was sitting in the front passenger seat, and two other female passengers were sitting in the back seat.  The police searched the applicant and found concealed in his underpants a piece of white tissue containing four transparent resealable plastic bags containing various quantities of Ice and one transparent resealable plastic bag containing a small quantity of cocaine.  The applicant was arrested and cautioned, and in response, he said the five packets of Ice were for his own consumption.

4.The only meaningful mitigation on behalf of the applicant was his timely plea of guilty.  At the time of sentencing, the applicant was 38 years of age with an appalling criminal record.  Between June 2007 and December 2023, he appeared before the court on ten previous occasions.  On five occasions, he was convicted of possession of a dangerous drug, and on one occasion, he was convicted of trafficking in a dangerous drug, for which he was sentenced to a term of 3 years and 4 months’ imprisonment on 15 April 2010.  He was a drug addict with previous convictions for drug offences and a history of being compulsorily treated for his addiction since 2017.  After his arrest for the present offence, he tested positive for both Ice and cocaine.

5.The judge applied the sentencing guidelines for Ice, noting that the quantity of drugs fell in the range of a sentence of 7 to 11 years’ imprisonment.  He mentioned that the applicant had 4 packets of Ice that were packed in such a way as to suggest that they were ready for supply to others, but nevertheless, he applied the sentencing guidelines applicable to a courier or storekeeper.  He also mentioned that a negligible quantity of cocaine was included in the drugs found in the applicant’s possession, which was an aggravating factor.  He therefore adopted a starting point of 7 years and 6 months’ imprisonment.  The judge enhanced the starting point by 1 year and 6 months for the aggravating factors of his previous criminal record, which included offences for trafficking and possession of a dangerous drug, and committing the offence whilst he was on bail for other matters awaiting sentence.  He noted that other than the one third discount for applicants guilty plea, there were no other mitigating factors in his favour.  He reduced the notional starting point of 9 years’ imprisonment by one third, and sentenced the applicant to 6 years’ imprisonment.

6.It should be noted that Mr Percy, who represented the applicant before the judge, acknowledged that the quantity of Ice corresponded with a starting point of 7 years and 2 months’ imprisonment.[1]  He accepted that the aggravating factors that the court could take into account were the applicant’s previous convictions for drug related offences;[2] and the presence of two different drugs.  He acknowledged that whilst the quantity of cocaine was very small, it was either trafficable or left over after use.[3]  He suggested that the starting point be enhanced by 12 months for the applicant’s prior criminal record and the two different types of drugs involved.  In his submission to the judge, he referred to the fact that the applicant had committed the offence whilst on bail, but did not make any allowance for it in his calculations for an appropriate sentence.[4] 

7.Mr Percy confirmed with the judge that no claim was being made that a substantial proportion of the drugs were for the applicant’s consumption.[5] It was a concession that was properly made given the circumstances of the applicant’s arrest, in the early hours of the morning, with others in a public vehicle, and that the drugs were packaged for supply. 

8.The judge quite properly allowed for the presence of two different drugs when he adopted a starting point of 7 years and 6 months’ imprisonment.  It is the enhancement of 1 year and 6 months for the aggravating factors of the applicant’s previous similar criminal convictions and committing the present offences whilst on bail that the applicant has a reasonably arguable ground of appeal.  It raises the question whether it was too high in the circumstances: HKSAR v Islam Azharul[6].  On this basis, I grant the applicant leave to appeal against his sentence.

9.It follows from what I have said that I do not grant leave to the applicant on the existing grounds of appeal.  They need to be amended to focus on the ground that I have identified in the body of this judgment.  However, I acknowledge there may be some reference in the existing Ground 2 to the high enhancement for the aggravating factors.  Having refused the applicant leave to appeal on the existing grounds, I remind him that he has the right to renew his application for leave on those grounds to the Court of Appeal, but he is also warned that if that Court comes to the conclusion that there was no justification for the renewal of the application, it has the power to order loss of any time which the applicant has spent in custody pending his appeal.

Mr Prakash L Daryanani, SPP, of Department of Justice, for the respondent

Mr Duncan Percy, instructed by Hastings & Co, assigned by the Director of Legal Aid, for the applicant

[1]  ppeal Bundle (AB), 11K. 

[2]  B, 10Q.

[3]  B, 10R. 

[4]  B, 11E.

[5]  B, 11O. 

[6]  HKSAR v Islam Azharul [2020] 1 HKLRD 644, at [20].